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2010 (10) TMI 941 - SC - Companies LawWhether the appellants were bona fide and diligently pursuing the remedy before a wrong forum? Whether the application under Section 34 of the Act had to be filed in the District Court only after the withdrawal of ‘appeal’ under Section 34 of the Act before the High Court? Held that:- Appeal allowed. The application under Section 34 of the Act was filed in time, by excluding the time spent before the wrong forum. As appellants demonstrated their diligence and bona fides by filing the application under Section 34 of the Act on 19.10.2009 itself immediately on reopening of court, without waiting for a formal order of withdrawal of the ‘appeal’ under Section 34 before the wrong forum. Therefore, it cannot be said that filing of the application under Section 34 of the Act on 19.10.2009 was belated. Further if the period spent before wrong forum is excluded, the application is filed within three months and there is no question of explaining any delay. The filing of an application for condonation under a wrong provision of law will not vitiate the application. In fact though the application for condonation of delay was initially filed under Section 5 of Limitation Act, that was subsequently replaced by an application under Section 34(3) of the Act, and again by an application under Section 34(3) of the Act read with Section 14 of the Limitation Act.
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